Posted
10/31/2003 07:13:00 AM
by Patrick
RICH GUY STEVE LOPEZ IS HAPPY TO PAY HIS TAXES: Steve Lopez says Arnold should quadruple the car tax. I agree with one of his points: that if the car tax is reduced, some other way must be found to fund local police and fire departments, and other public safety agencies. But I have to admit I chuckled when I read Lopez's line: "Excuse me, but I'm happy to pay my car tax."

There sure are a lot of rich liberals who mouth off about how happy they are to pay their taxes, and how they wouldn't mind paying even more. I wonder how many of these folks donate a few extra thousand to the IRS every year -- just because they wouldn't mind.

I write this final column on Charles Pickering because, in some 50 years as a reporter, I have seldom seen such reckless, unfair, and repeated attacks on a person -- not only by Democrats on the Senate Judiciary Committee but also by organizations that gather financial contributions because of their proclaimed dedication to civil rights, civil liberties, and honest research. (People for the American Way, Alliance for Justice, et al.)

This is stern stuff coming from Hentoff, a lifelong liberal. But the sternest stuff comes at the end of the column, as Hentoff says that certain liberals' very reputations depend on the outcome of the vote on Pickering:

Not only Pickering's nomination rides on this nomination. So do the reputations of those Pickering opponents who demonize him. And that includes The New York Times' editorial writers. Now, on the floor, how many Democrats will vote for Pickering?

Ironically enough, the answer came today, even before Hentoff's column came online:

Senate Republicans on Thursday failed to break a Democratic filibuster of U.S. District Judge Charles Pickering's promotion to the federal appeals court, continuing a two-year standoff tinged with accusations of racial, religious and regional politics.

So much for the reputations of Chuckie S. and his pals at the New York Times -- in Hentoff's eyes. In the eyes of many of us, their reputations were shot to hell years ago.

Posted
10/30/2003 08:40:00 PM
by Patrick
STILL MORE SLOPPINESS AND/OR DUPLICITY FROM THE NEW YORK TIMES: Re the Schiavo case, a reader alerts me to the similar case of a California man named Robert Wendland.

Wendland was not in a "persistent vegetative state" but rather a "minimally conscious state," but the case was otherwise very similar to that of Ms. Schiavo. The spouse and other witnesses said that he had told them he didn't want to "live like a vegetable." His mother and sister argued to keep him alive.

The California Supreme Court ruled unanimously that a conservator could not refuse life-sustaining treatment for Mr. Wendland. (Wendland had died of pneumonia by the time the decision was issued, but the court decided the case anyway, due to the importance of the issues involved.) The court reasoned that, since he had not specifically indicated a desire to refuse such treatment in a formal way while competent, there was no "clear and convincing evidence" of his wish to die. The court stated that this ruling might be different if a patient were in a persistent vegetative state. However, in my opinion, the California Supreme Court's approach is well-suited to the Schiavo case.

While reading about Wendland, I learned a very interesting fact in an article about his death. The article says that his wife, who had argued that he should die,

praised Dr. Ronald Cranford, a Minnesota neurologist and bioethicist, for providing her with medical and moral advice during Robert's final days. Cranford, a consultant in several high-profile right-to-die cases, did not personally treat Wendland but advised doctors on his care. His presence at the hospital enraged some pro-life activists, who fired off a statement Tuesday denouncing his involvement.

Does the name "Ron Cranford" sound familiar? Maybe you remember him from the New York Times article I discussed here titled In Feeding-Tube Case, Many Neurologists Back Courts. As I pointed out in my post, the article failed to live up to its headline, because only one neurologist who had viewed the tapes believed that Ms. Schiavo had no chance of recovering: Dr. Ron Cranford.

The Times article mentioned that he had testified for Mr. Schiavo, and I discounted his opinion accordingly. But the article didn't mention that he also regularly takes a pro-death position in litigated, high-profile "right-to-die" cases.

In these cases, Cranford's opinion carries about the same credibility as that of Jack Kevorkian. To be accurate, the Times's headline should have read: "In Feeding-Tube Case, One Right-to-Die Activist Backs Courts." Wow! Stop the presses!

once uncharacteristically lost her temper when Meyer told a joke about Karen Quinlan. "What is the state vegetable of New Jersey?" Meyer asked Terri in the summer of 1982. The punch line was "Karen Ann Quinlan."

"She said the joke wasn't funny and did not approve of what was going on in the Quinlan case," Meyer testified, referring to the legal battle to remove the woman from life support. "I remember one of the things she said is, 'How did they know she would want this?'"

Other friends and relatives testified that Terri described Michael Schiavo as "mentally abusive," and repeatedly talked about divorcing him, as late as days before her collapse. Also, as mentioned on this blog before, a guardian ad litem was appointed who "concluded that he had not found clear and convincing evidence that Terri would have rejected life support." The probate judge rejected this recommendation.

New to me was this astounding evidence:

The Schindlers had contacted a woman Michael dated in 1991 who told them Michael had confessed to her he did not know what Terri would want. Although the woman refused to sign an affidavit, it bought the Schindlers some time. And with it, they found Trudy Capone.

A former co-worker of Michael's, Capone signed an affidavit on May 9, 2001, stating "Michael confided in me all the time about Terri . . . He said to me many times that he had no idea what her wishes were."

How was some probate judge able to find "clear and convincing evidence" of her wish to die, given these facts??

Posted
10/30/2003 06:07:00 AM
by Patrick
TAKING A STEP BACK: THOUGHTS ON THE SCHIAVO CASE: Much of the blogging I have seen on the Terri Schiavo controversy is driven by day-to-day events. This is understandable, given the fast-paced nature of the story. (For instance, just yesterday we learned here that Michael Schiavo's lawyers (as expected) filed court papers challenging the constitutionality of "Terri's Bill.") But I think it might be worthwhile at this point to take a step back and look at some of the issues raised by the controversy, without getting bogged down in whatever happened today.

The Schiavo case is remarkable for the depth of feeling it inspires in people on both sides of the issue. I have received more letters on this topic than any other topic I have discussed since this blog began. I have had a regular reader tell me he is boycotting my site because he disagrees so violently with my opinions. Many others have written me to support my point of view, to share their thoughts, and to encourage me to continue the discussion.

The emotions people feel are understandable. Although there are far more serious issues in the world, this one has a deeply personal aspect to it. Many people have had a relative or friend in a similar position, and have had to make difficult decisions about life-or-death issues -- often based on limited information regarding what their friend or loved one would really want.

Even if you haven't been through such an experience, it is very easy to imagine yourself in the position of someone in the case. We wonder what we would do if we were the Schindlers, or Mr. Schiavo. Worst of all, we can't help but imagine what it would be like to be Ms. Schiavo herself.

Unfortunately, as often happens when people feel strongly about an issue, many are allowing their feelings to cloud their judgment. People (mostly from the political left) have been heard making all sorts of unreasonable arguments, and discarding compelling evidence on the flimsiest basis. For example, I had a debate with a woman on a leftist internet site in which she discounted three affidavits (filed by a nurse and two nurses' aides) because they were all notarized by the same person. When you start making objections based upon such trivia, we are in OJ-land.

To my knowledge, Terri Schiavo never killed anyone -- but many on the left advocate treating her worse than they would treat a convicted murderer. Early on in this debate I noted the irony that, at the same time a court had ordered Terri Schiavo to die in a manner (forced starvation and dehydration) that appears cruel, our United States Supreme Court had granted a stay to a man convicted of murdering two people, sparing him from a lethal injection -- because he has collapsed veins.

This is not the only way in which Ms. Schiavo has received less consideration than an accused or convicted murderer. Criminal defendants are constitutionally entitled to have their cases decided by a jury -- bringing to bear the collective experience and wisdom of a group of diverse people -- rather than by a single judge. Criminal defendants are also entitled to have their guilt decided according to the "reasonable doubt" standard -- whereas Ms. Schiavo was condemned to death based on findings made according to the less stringent "clear and convincing evidence" legal standard.

If nothing else, this case suggests that the procedural protections available to criminal defendants should be available to people who can't speak for themselves, whose very life or death hinges upon the trial court's decision. Is not Terri Schiavo's life worth at least as much as that of someone charged with a deliberate, cold-blooded murder? Why, then, do we not accord her at least the same protections under the law that we would accord to the suspected murderer?

We should also recognize that, even with all of these protections, the courts are fallible. Courts get things wrong, every day. Judges and jurors are people like you and me. They have preconceptions and biases. They make mistakes. You think the O.J. jury got it right?? You think O.J. deserved custody of his children??

If you have any doubts about the fallibility of trial courts, just look at the dozens of provably innocent people who have been on Death Row in this country. I support the death penalty in principle, but if you think that no innocent people make it onto Death Row, you just haven't been paying attention.

Yet the left continually argues that "19 judges" have ruled for Mr. Schiavo. This argument ignores the fact that the only judge whose opinion really mattered was the trial judge, who made the factual findings in this case. After that, appellate judges deferred to the trial judge's findings. For better or worse, our legal system depends to an incredible extent upon such findings of fact, and it is well-nigh impossible to obtain a reversal based on an argument that the factfinder got the facts wrong.

By the way, the deference that appellate courts show to factual findings made in the trial court is the main reason that innocent people on Death Row are rarely freed through the orderly workings of the justice system. Far too often, a defendant's innocence is revealed not by layers of judicial review, but rather by the efforts of activists -- who usually have to fight the judicial system to obtain a defendant's release, even when the defendant's innocence is clear.

Consistent with their other bizarre positions, leftists also purport to be outraged at the idea that the Florida Legislature gave the Governor the power to stop the starvation of Ms. Schiavo. If she had murdered someone, these same leftists would likely praise a commutation of the death sentence -- even though such an order is (like Gov. Bush's order in this case) an executive order that directly overturns a valid judgment rendered in a court of competent jurisdiction. But Gov. Bush's order was in essence a stay of execution for Ms. Schiavo. So what made it so outrageous -- the fact that she hadn't murdered someone before she was condemned to die?

The media, which often operates in effect as an arm of the political left, has been equally complicit in making silly arguments, distorting the facts, and generally behaving in an irrational and irresponsible fashion. As I have documented on this site, a one-sided view of the story has been presented in virtually all forms of available media, including news articles and editorials in major newspapers, articles in national magazines, stories on the radio, and TV talk-shows.

But here's the thing. Even after you strip away the silly arguments discussed above, society is still faced with a very difficult decision. We all have to admit that we don't really know what Ms. Schiavo would want in this situation. We can make the best judgment we can, based on the facts we know. But there will inevitably be facts we don't know, and will probably never know.

So what to do? I don't have all the answers. Here's what I do know:

Absent a clear written directive, issues of life and death should be resolved by a jury, not a judge, applying a stringent evidentiary standard. If this standard can be met by hearsay testimony from people with glaring conflicts of interest, the standard is too low.

I am not inclined to put blind faith in doctors, any more than I would in the courts. There are too many credible stories of people who were written off by doctors as vegetables and lived to tell the tale. If you are rabidly in favor of killing Terri Schiavo, I would like to introduce you to Rus Cooper-Dowda and Stephen Drake. Tell them that we need to trust the doctors. Tell them that when a doctor diagnoses someone as a "vegetable" with no chance of recovery, the doctor must be right.

Finally, I will agree with Mr. Schiavo and his attorney on one point: this case highlights the need to reduce to writing your wishes regarding such important decisions.

At the risk of seeming flippant, I think it also highlights the need to be careful whom you marry.

I was born brain-damaged as a result of a forceps delivery. The doctor told my parents I would be a "vegetable" for the rest of my life -- the same word now being used for Schiavo -- and that the best thing would be for nature to take its course. They refused. Although I had a lot of health problems, surgeries and pain as a child, I went on to lead a happy life.

It's impossible not to wonder: how many Stephen Drakes or Rus Cooper-Dowdas weren't so lucky?

They make a number of suggestions, starting with this one: "First, it is far too easy to qualify a recall for the ballot." This is clearly a major problem, since the state had to spend millions on a recall that, ultimately, was unsuccessful and changed nothing in Sacramento.

Right, Erwin? Is that the problem, Mark?

They state that their "most important" suggestion is that, "in the event of a recall, there should be no race for a successor." Rather, they argue, the lieutenant governor should succeed the governor in the event of a successful recall. Their reasoning? "We believe this would dramatically depoliticize the recall process."

Like the guy on the mattress commercials says: "Hey, Erwin!" The recall process is a political process! When a law professor starts talking about how he wants to "depoliticize" a political process, that's when you should get nervous.

Ridley-Thomas and Chemerinsky end with this lovely speech:

We know that everyone is exhausted from the events of the last few months, and it is tempting to pretend that this was a unique political earthquake never to be repeated and to just move on. But we owe it to the future of California to learn from what we have experienced and to create a better recall process.

Posted
10/29/2003 06:31:00 AM
by Patrick
QUESTION FOR ANTI-WAR PROTESTORS: I have a question for anti-war protestors: do you explicitly support the enemy and want the United States to fail? Assuming you answer "no," perhaps you should know that the groups putting together your anti-war rallies include a group that does, explicitly, support the enemy.

As Eugene Volokh notes, "the Iraqi anti-colonial resistance" refers to the people we are fighting in Iraq. You know, the enemy. The ones killing our soldiers. That enemy.

Make no mistake. This group is saying: "We are explicitly and unconditionally supporting the enemies of the United States." So the next time you plan to attend an anti-war rally, realize with whom you are associating yourself.

Posted
10/29/2003 12:32:00 AM
by PatrickDOG TRAINER CANCELLATION NUMBERS: L.A. Observed reports here that over 9,000 people cancelled their subscriptions to the Los Angeles Dog Trainer because they were upset by the Arnold hit piece, and by the paper's recall coverage in general. This is just a bit more than the 1,000 cancellations we'd heard about originally.

Posted
10/28/2003 11:27:00 PM
by Patrick
FOR ANYONE CONVINCED THAT TERRI SCHIAVO SHOULD BE KILLED: Go to this link and listen to this four-minute interview with Rus Cooper-Dowda. Her doctors once thought she was in a "persistent vegetative state" and stood around her bedside talking about when they were going to kill her -- as she listened in horror. She barely managed to convince one nurse, who (acting against orders) documented her ability to respond -- contrary to the wishes of her husband.

She is now fully recovered. Oh -- and she is divorced.

I have discussed this woman previously in an update at the bottom of this post -- but her story packs a bigger wallop if you actually listen to her tell it in her own voice. Anybody who can hear this and shrug it off is as closed-minded as they come.

Posted
10/28/2003 08:06:00 PM
by Patrick
L.A. OBSERVED: Patterico has made the list of blogs that have a permanent link at L.A. Observed. While I may not always agree with Kevin Roderick, he runs a great site with must-read commentary on the local media. Check out his site today.

Posted
10/28/2003 06:45:00 AM
by Patrick
READER REACTION: I have received much thoughtful feedback from readers regarding the Schiavo controversy. This case arouses emotions like few other. Many people have been through similar experiences with a loved one, and view the controversy through the prism of their own experience. I have tentative plans to write a piece summing up my feelings on the whole controversy. In the meantime, your feedback:

I have received yet another e-mail from a reader working in state government telling me to ignore the wishes of my reader who is temporarily boycotting the site due to my Schiavo coverage. This reader says: "Let your regular reader continue the boycott. Were it not for you, I would not know this stuff about Beelzebub, er, Michael Schiavo."

[My reader is, I believe, speaking hyperbolically and/or a bit tongue-in-cheek. Nobody is actually saying Mr. Schiavo is the devil incarnate, okay? So please, do not send me e-mails in response to this post, saying that by printing this reader feedback, I am thereby portraying Mr. Schiavo as the devil. It is true that I have formed a distinctly negative opinion of Mr. Schiavo as I have learned more and more about this controversy. As I have documented on this site, I think there is significant reason to worry about his credibility. But there is a possibility that, as venal and self-centered as he may appear to me, he could be telling the truth about Terri's wishes. I don't think he is the devil. My opinion is that he is an incredibly self-absorbed and not very trustworthy person.]

Reader O.C. writes that

most people would not watch a dog starve to death, let alone a person. I don't care if she is brain dead. To die with dignity is for people who consciously make that choice when they are dying. That is not the case with Terri Schiavo. I also don't believe that food, via feeding tube or spoon, is "artificial." It's just basic.

O.C. goes on to say that if she were Mr. Schiavo, she would look for ways to make Terri's life the best it can be.

Reader A.M. from Maryland writes a long, thoughtful post. He chooses not to express an opinion on what should happen with Ms. Schiavo, having faced difficult decisions himself with respect to his mother.

Despite his lack of a strong personal view on this controversy, A.M. has been noticing the media bias on the story. He saw a segment on the "Today" show which made plain the view "that State intrusion into this affair was ill-advised and politically driven."

A.M. also describes hearing part of the Diane Rehm Show on NPR. According to A.M., Rehm says that there should be no discussion of "Michael Schiavo's conduct, including his live-in relationship and out-of-wedlock child" because (as A.M. characterizes Rehm's views)

it's inappropriate to bring this "sub-text" into the discussion, which should stay focused on Terri Schiavo's medical condition. Host and guests concurred that Michael Schiavo's conduct is irrelevant, and that, as husband, his role as the guardian of Terri's wishes and interests must be respected.

A.M. says:

I found this discussion to be a fascinating and disturbing journey into NPR-Upside-Down-Land. I say this as an NPR [financial] contributor, and a pro-choice Democrat (for what it's worth). For all its moral anguish, the facts as they are known about the husband's conduct are quite germane, and quite troubling. Mr. Schiavo suffers acute conflicts of interests that the let-Schiavo-die proponents seem unable to recognize. Yet, how can conflicts of interest possibly be construed as a "sub-text" that's "inappropriate" to consider? The mind boggles.

(Emphasis by Patterico.)

A.M. concludes: "it's truly a sad spectacle, witnessing people I'd hitherto respected jump with such alacrity into moral and logical swamps of their own making."

Please save your nasty, knee-jerk e-mails. The point is not that minorities are stupid or inferior. I know many of you would love to conclude that this is my point, so that you can feel all self-righteous and write me e-mails saying I'm bigoted. But save it. There are plenty of applicants of all races with substandard qualifications. But you wouldn't expect such underqualified applicants to get into prestigious universities -- unless they were minorities.

When the Los Angeles Times first broke the news that thousands of applicants to the elite UC schools with SAT scores over 1400 were getting turned down, while hundreds of others with below-average scores were getting in, it didn't take a rocket scientist to surmise that Proposition 209 was being blatantly violated. All that remained was for someone to dig up the proof. Now someone has.

Posted
10/27/2003 07:46:00 PM
by Patrick
SCHIAVO ON LARRY KING: I just finished watching Michael Schiavo on Larry King. It is difficult to imagine a more sympathetic interview. King asked one or two tough questions, but left scores more unasked.

King was, as usual, completely unprepared. For example, he expressed surprise when he learned that Schiavo has had a child by his current girlfriend.

King asked nothing about the allegations, made in an affidavit under penalty of perjury by a registered nurse named Carla Iyer, that Michael Schiavo said: "When is that bitch going to die?" and exulted in how rich he was going to be when Terri was dead. There were no questions about whether (and why) Schiavo allegedly ordered Terri's television and radio to be left on the same station at all times.

Other aspects of that nurse's affidavit were discussed, however: namely, descriptions of Terri's responsiveness. The explanation given: Mr. Schiavo yelled at the staff a lot, because he was very concerned that Terri receive good care. Apparently the staff got mad at him as a result. So, they made these things up.

So, we are to believe that a registered nurse and two nurses' aides swore out declarations under penalty of perjury, accusing a relative of things like mental torture, denying rehabilitative care, and wanting to kill his wife for money -- because a concerned relative had yelled at them?

Does this pass the smell test? A caller seemed sufficiently doubtful that she asked Schiavo whether he would take a lie detector test. His lawyer stepped in and said that the best lie detector was the fact that "20" judges looked at the case (earlier in the program it had been only 19, so I guess a 20th judge reviewed the case during the first half hour of the program). To his credit, King pressed Schiavo on this a little, noting that he still could take a lie detector test. Schiavo, looking quite uncomfortable, said he would decline to answer the question.

Concerning the videos, Schiavo said that there is other film that shows Terri to be unresponsive. When King asked if CNN could go in to film her independently, Schiavo and his lawyer declined, arguing her right to privacy.

Schiavo maintained that he hasn't abandoned Terri; if anything, the family has. He didn't explain why the parents keep trying to visit her, and why he keeps preventing or restricting those visits -- and how this is all consistent with his assertion that the family has abandoned her.

King asked Schiavo why he didn't just walk away and let the parents take care of her. After some talk about how he loved her and owed it to her to kill her, Schiavo said that, anyway, he would never turn over Terri to her parents because of what her dad testified to at the trial. According to Mr. Schiavo, her dad had testified that he would cut off all her limbs, to satisfy his own personal desire that she stay alive. Wow -- that's pretty odd, huh?

Schiavo's attorney, George Feiger Felos, stepped in at that point to explain what had really happened at the trial. Felos said that he had asked the father at trial: if Terri had a medical condition that required you to authorize amputation of a limb to save her life, would you? Answer: yes. Question: a second limb? A third? A fourth? Mr. Schindler apparently testified that he would authorize amputation of all her limbs if it were necessary to save her life.

This testimony is hardly shocking, coming from a parent. But Mr. Schiavo had made it sound ghoulish, as if the father had testified to some sadistic urge to take a chainsaw and personally cut off all of his daughter's limbs. This was a clear example of Mr. Schiavo twisting the words of another to suit his own purposes -- and we are supposed to trust him that he didn't do the same with Terri's words.

But, Mr. Schiavo said, he was not the only one who had heard Terri say she didn't want to be kept alive by tubes. "Two other people" said this. However, Mr. Schiavo didn't volunteer that those people were his own brother and sister-in-law.

To me, the most revealing moments were when Schiavo was asked what the parents' motives are. He responded right away that Terri's father just wanted her money -- not for her, but for himself.

But Schiavo also claimed that most of the money is gone. (He said about $50,000 is left. That's not much if you are Terri's parents and plan to spend it on rehab -- but it's plenty enough to give Schiavo and his girlfriend a nice vacation in Europe. That's one of the things that Mr. Schiavo allegedly told RN Carla Iyer that he wanted to do with the money he hoped to inherit.)

So, King asked, if most of the money is gone, why are the parents still pursuing this?

King asked the question twice, and Schiavo gave different answers. The first time, Schiavo seemed dumbfounded by the question. He then argued that the parents know very well that Terri has no hope of improvement. In the next breath he said that the parents are getting fooled by their lawyers and the right-wing right-to-lifers. (Damn right-wingers! I knew they were behind this!) In the next breath he asserted again that the parents know perfectly well she won't get better.

Later in the program (perhaps having forgotten that he asked it before), King asked the question again. Why are the parents trying to keep her alive? Schiavo replied that he guessed the parents were just trying to make his life a living hell.

That was very revealing. When you strip away the veil, and his attorney doesn't step in quick enough to answer the question for him, the truth comes out. It's all about him.

Posted
10/27/2003 06:38:00 AM
by Patrick
DISNEY HALL: Last night I saw pianist Evgeny Kissin give the first recital at the new Walt Disney Concert Hall here in Los Angeles. I came away very impressed with Kissin and the Disney Hall.

Disney Hall is a remarkably intimate space. Virtually everything inside is made of wood. Many of the seats are crowded right around the stage, with large groups of seats above the stage to the left, right, and rear. I sat in a $15 "bench" seat (padded and very comfortable) behind the stage. I was in the front row of this section of seats, which is called "orchestra view." I felt it was one of the best seats in the house, and the people sitting next to me said the same.

In a choral concert or vocal recital, audience members in these seats will be looking at the back of the singer(s) head(s), but in a piano recital, you are simply on the left side of the piano instead of the right. Although the lid of the piano is swung open to send the sound in the opposite direction, the acoustics are so good that you can't tell the difference. Visually, it felt almost as though you were sitting in a living room watching someone play the piano. From my vantage point, I could not see Kissin's hands working their magic, but from about 30-40 feet away I had a clear view of his face (below the wild hairdo) making interesting expressions indicating intense concentration. Every so often as he played, he would shoot a glance our way as if he were thinking: "Hmm. I'm not used to seeing people sitting to my left."

Part of the phenomenon of good acoustics is that, not only you can hear the music very well, but you (and presumably the performer) can also hear the annoying audience noises better than ever. You almost felt as though you needed to hold your breath so as not to disturb the performer. Every cough from any section in the hall was like a gunshot. I was certain that everyone in the hall (including Kissin) could hear, for example, the idiot next to me undoing the velcro on his binoculars case, as well as the inconsiderate woman behind me noisily turning the pages in her program. It is unfortunate that the audience members did not all treat the hall, the music, and the performer with the respect they deserved.

Kissin started with the beautiful Schubert Bb sonata. He took the first two movements slowly, with feeling. The slow pace worked very nicely for the first movement, but was a bit too slow for my taste in the second movement. Some of the more lyrical passages lacked a flowing legato. After a chorus of coughs in the space after the first movement, Kissin dove right into the subsequent movements. The third movement was bouncy and fun, and the last well-executed. After an intermission, Kissin had a chance to show off his chops with some Liszt. He played four transcriptions of Schubert songs, as well as a couple of original (and naturally showy) Liszt pieces. He received several enthusiastic standing ovations, and played four encores. The concert ended up lasting almost 2 1/2 wonderful hours.

I have a slew of tickets for various Disney Hall concerts in the upcoming season, and I have to say I am excited. If the sound of a piano can fill this hall the way it did last night, it is almost impossible to imagine what a full orchestra will sound like. I had read that the members of the L.A. Philharmonic are learning that the acoustics of the hall are changing the way they play, increasing the subtlety and nuance. The orchestra can finally really hear itself play. I feel confident that the various visiting orchestras (including the Berlin Philharmonic in November) will respond with equal enthusiasm to the hall. Now the main obstacle to making this hall the perfect place to see a concert is making sure the experience is not spoiled by inattentive, noisy audiences.

I have gained firsthand knowledge of the misguided priorities of the LAPD. I've witnessed the vast number of police personnel engaged in the failed prohibition against illegal drugs, the central feature of which is the so-called 'buy-bust' operation. During these elaborate undercover sting operations, involving 15 to 25 LAPD officers, a pathetic street person — who is usually a homeless, mentally ill, drug-addicted black or Latino parolee — is approached by an undercover officer and offered an inflated price for a rock or two of cocaine.

After the target seizes the opportunity to make a quick profit to feed his drug habit and sells to the undercover officer, the other officers swoop in to complete the arrest.

My wife and I have about 14 years of criminal law experience between us, all in Los Angeles. Neither of us have ever heard of an undercover operation designed to catch a single person, involving 15 to 25 officers. In a typical street narcotics operation where several sales are taking place over time, you might have two officers watching the sales activity, perhaps two to four more to chase down the buyers, and (if it's an undercover operation) one more officer working undercover. That's maybe seven officers total, who will make several arrests of multiple buyers, as well as the seller(s). But 15-25 officers on an operation against one guy? That would be outrageous -- which is why it doesn't happen.

Now, reasonable people can debate whether the "war on drugs" is wise. There may be a valid argument that LAPD would have sufficient resources to address other crime if it wholly abandoned its duty to arrest drug offenders. But let's get our facts straight.

To many supporters of Mrs. Schiavo's parents, who say she should be kept alive on a feeding tube, the tape demonstrates that she can still think and react. But many leading neurologists say that it [the videotape] means no such thing, that the appearances of brain-damaged patients can be very misleading.

Reading this, you might think that the story is about to give you "many" examples of independent neurologists who have examined the tape and say it proves nothing about whether Ms. Schiavo can think or react. In fact, the story contains not one such opinion -- unless you count a guy (Dr. Ron Cranford) who testified for (and was presumably paid by) Mr. Schiavo.

Is this their whole story -- that one guy who testified for Mr. Schiavo thinks the court made the right decision? Apparently so. Let's look at the other experts cited in the story, and what they actually do say:

* Dr. James L. Bernat "said he had not examined Mrs. Schiavo or seen any videotapes." He says: "Assuming she is in a vegetative state, I can say with medical certainty that there is no realistic hope that she'll recover." Verdict: didn't view the tapes; is assuming away the central question. Strike one.

* Dr. Richard Neubauer, director of the Ocean Hyperbaric Neurologic Center in Florida, said in an affidavit that said he found Mrs. Schiavo "not in a vegetative state" and "at least semi-responsive to her environment." He was seeking to treat her by putting her in an oxygen-rich pressure chamber. Verdict: said Ms. Schiavo can think and react to a degree. Strike two.

* Dr. Michael P. McQuillen, a professor of neurology at the University of Rochester, describes a famous case of a "minimally conscious" state. The case was "that of a woman who appeared vegetative but, on overhearing her sister on the phone making funeral arrangements for a favorite uncle, began to cry."

That doesn't sound too supportive of the courts. Of course, later in the story, Dr. McQuillen does say that keeping Mrs. Schiavo alive artificially could be a burden on her:

For many terminally ill patients, he pointed out, "food is an absolute burden — it increases secretions and makes them uncomfortable."

Problem: she is not terminally ill. Verdict: describes how people might appear vegetative and really not be; clueless as to whether Ms. Schiavo is terminally ill. Strike three! You're out!

It may be that "many" independent neurologists have reviewed the tapes and still support the decision of the courts. But if the Times is going to make this claim, the Times ought to tell us who they are.

UPDATE: Turns out the one neurologist to opine in a way consistent with the headline is a "right-to-die" activist who regularly testifies for the pro-death side in high-profile "right-to-die" cases. More details here.

Posted
10/26/2003 11:24:00 AM
by Patrick
TOM TOMORROW -- A HYPOCRITE TODAY: Liberal cartoonist Tom Tomorrow has this take on what he believes is Republican hypocrisy. I think many of his points are valid. Yet, in an ironic twist, every single one of these points could be turned around to demonstrate mirror-image hypocrisy on the left -- a fact to which Tomorrow seems blind.

I'll just give you one example. Tomorrow alludes to Republicans' defense of Arnold after the groping scandal, and says that this means that we have "learned from Republicans" that "sexual misconduct isn't such a big deal after all."

Cute. But it is just as hypocritical for Democrats to criticize Arnold, if they defended Clinton's sexual misconduct (or worse, his lying under oath and obstruction of justice). I'll bet every person reading this knows some liberal who is furious about Arnold's alleged transgressions, but winked at Clinton's crimes.

If you look at the cartoon you'll see that this exercise can be repeated in each panel. My guess is that Tomorrow's next cartoon will make this exact point. I will now sit here and hold my breath until that happens. Blogging may be light over the next few decades.

I have a reader who is boycotting my site for three consecutive days every time the Schiavo case is mentioned. I had hoped to swear it off the other day, but the Kaus piece is just too good. I should never say that I am not posting on a topic any more, because that promise will hold only until I become interested in the topic again. [UPDATE: After reading this post, my reader complains: "Made the mistake of getting on your site, thinking 'day three' may have come and gone. Not only do I find an entry on Schiavo, but a veritable deluge of Patterico propaganda. Your site is beginning to have a Stalinist tinge to it. I am extending my boycott to at least a week."]

Since I have lost this reader for the next three seven days, I might as well tell you some other interesting facts about the case that I found recently. I suppose you may have already heard these facts, perhaps on talk radio, but I haven't seen this level of detail in any of the online commentary I have seen. If you have already read allegations that, for example, Mr. Schiavo mentally tortured Ms. Schiavo by ordering her radio and TV set to be kept on the same channel at all times, or that he openly exulted about how rich he would be if she died, you can probably skip the rest of this post.

I have expressed frustration at my inability to access the original Schiavo court documents. However, I have recently found what purports to be copies of many of those documents -- including affidavits from a nurse and two nurses' aides. This material is contained here, deep within a huge document that appears to be a call to action by activists writing before the Legislature acted.

Knee-jerk folks from the "kill Schiavo" camp will naturally say that we don't know these are the actual affidavits, given the site where they are republished. But they sound genuine to me. If what is contained here is accurate, it's worse than I had thought.

Perhaps the most dramatic affidavit is from Registered Nurse Carla Iyer. Here are some excerpts:

One time I put a wash cloth in Terri's hand to keep her fingers from curling together, and Michael saw it and made me take it out, saying that was therapy.

Terri's medical condition was systematically distorted and misrepresented by Michael. When I worked with her, she was alert and oriented. Terri spoke on a regular basis while in my presence, saying such things as "mommy," and "help me." "Help me" was, in fact, one of her most frequent utterances. I heard her say it hundreds of times. Terri would try to say the word "pain" when she was in discomfort, but it came out more like "pay." She didn't say the "n" sound very well. During her menses she would indicate her discomfort by saying "pay" and moving her arms toward her lower abdominal area. Other ways that she would indicate that she was in pain included pursing her lips, grimacing, thrashing in bed, curling her toes or moving her legs around. She would let you know when she had a bowel movement by flipping up the covers and pulling on her diaper and scooted in bed on her bottom.

When I came into her room and said "Hi, Terri", she would always recognize my voice and her name, and would turn her head all the way toward me, saying "Haaaiiiii" sort of, as she did. I recognized this as a "hi", which is very close to what it sounded like, the whole sound being only a second or two long. When I told her humorous stories about my life or something I read in the paper, Terri would chuckle, sometimes more a giggle or laugh. She would move her whole body, upper and lower. Her legs would sometimes be off the bed, and need to be repositioned. I made numerous entries into the nursing notes in her chart, stating verbatim what she said and her various behaviors, but by my next on-duty shift, the notes would be deleted from her chart. Every time I made a positive entry about any responsiveness of Terri's, someone would remove it after my shift ended. Michael always demanded to see her chart as soon as he arrived, and would take it in her room with him. I documented Terri's rehab potential well, writing whole pages about Terri's responsiveness, but they would always be deleted by the next time I saw her chart. The reason I wrote so much was that everybody else seemed to be afraid to make positive entries for fear of their jobs, but I felt very strongly that a nurse's job was to accurately record everything we see and hear that bears on a patient's condition and their family. I upheld the Nurses Practice Act, and if it cost me my job, I was willing to accept that.

Here is the most amazing part of the nurse's affidavit:

Throughout my time at Palm Gardens [one of Ms. Schiavo's nursing homes], Michael Schiavo was focused on Terri's death. Michael would say "When is she going to die?," "Has she died yet?" and "When is that bitch gonna die?" These statements were common knowledge at Palm Gardens, as he would make them casually in passing, without regard even for who he was talking to, as long as it was a staff member. Other statements which I recall him making include "Can't anything be done to accelerate her death - won't she ever die?" When she wouldn't die, Michael would be furious. Michael was also adamant that the family should not be given information. He made numerous statements such as "Make sure the parents aren't contacted." I recorded Michael's statements word for word in Terri's chart, but these entries were also deleted after the end of my shift. Standing orders were that the family wasn't to be contacted, in fact, there was a large sign in the front of her chart that said under no circumstances was her family to be called, call Michael immediately, but I would call them, anyway, because I thought they should know about their daughter.

Any time Terri would be sick, like with a UTI or fluid buildup in her lungs, colds, or pneumonia, Michael would be visibly excited, thrilled even, hoping that she would die. He would say something like, "Hallelujah! You've made my day!" He would call me, as I was the nurse supervisor on the floor, and ask for every little detail about her temperature, blood pressure, etc., and would call back frequently asking if she was dead yet. He would blurt out "I'm going to be rich!" and would talk about all the things he would buy when Terri died, which included a new car, a new boat, and going to Europe, among other things.

Certified Nursing Assistant Heidi Law:

During the time I cared for Terri, she formed words. I have heard her say "mommy" from time to time, and "momma," and she also said "help me" a number of times. She would frequently make noises like she was trying to talk.

The only stimulation she had was looking out the window and watching things, and the radio, which Michael insisted be left on one particular station. She had a television, and there was a sign below it saying not to change the channel. This was because of Michael's orders.

As a CNA, I wanted every piece of information I could get about my patients. I never had access to medical records as a CNA, but it was part of my job duties to write my observations down on sheets of paper, which I turned over to the nurse at the nurses station for inclusion in the patients charts. In the case of Terri Schiavo, I felt that my notes were thrown out without even being read. There were trash cans at the nurses stations that we were supposed to empty each shift, and I often saw the notes in them. I made extensive notes and listed all of Terri's behaviors, but there was never any apparent follow up consistent with her responsiveness.

Certified Nursing Assistant Carolyn Johnson:

I remember seeing Michael Schiavo only once the entire time I worked at Sabal Palms [another of Ms. Schiavo's nursing homes], but we were all aware that Terri was not to be given any kind of rehabilitative help, per his instructions. Once, I wanted to put a cloth in Terri's hand to keep her hand from closing in on itself, but I was not permitted to do this, as Michael Schiavo considered that to be a form of rehabilitation.

I cite this evidence only because I find it interesting, and because I find it reassuring that the right thing has happened. I don't expect to convince people on the "kill her" side of this issue. Their minds are made up, no matter the evidence.

For example, I was in a debate with some people at one particular internet site in which a woman named "Anne," who had read the above affidavits, discounted them because they were all notarized by the same notary public! Here is a direct quote from Anne: "Who is Patricia J. Anderson, Notary Public? What is her interest in all of this."

I don't mean to say that there aren't rational arguments on both sides of the issue. I think there are. But people like Anne are in OJ-land. The above evidence won't change their minds, because no evidence on earth could.

Posted
10/26/2003 08:31:00 AM
by Patrick
FRIST PLEDGES TO WIMP OUT: I just watched Bill Frist on Fox News Sunday, discussing the anticipated filibuster of Janice Rogers Brown. Tony Snow and Brit Hume pressed him to say what he and other Senate Republicans are going to do to stop this. He first tried to evade the question. When pressed, his answer concentrated much more on the downside of taking action than it did on addressing the problem.

I said yesterday that there is little hope for Brown if the Retaliacrats™ can tell lies about judicial nominees and suffer no consequences. Frist's performance this morning has done little to reassure me.

See if you can spot the difference between the original quote and the CNN version. Here is the quote from Bush's written statement:

I applaud the Senate for joining the House in passing the ban on partial-birth abortion. This is very important legislation that will end an abhorrent practice and continue to build a culture of life in America. I look forward to signing it into law.

"I applaud the Senate for joining the House in passing the ban on 'partial-birth abortion,'" Bush said in a written statement. "This is very important legislation that will end an abhorrent practice and continue to build a culture of life in America. I look forward to signing it into law."

Did you see the difference?

As Taranto points out, the CNN version adds quotation marks around the words "partial-birth abortion." Although the story purports to quote Bush's statement, the story adds quotation marks that were not in the text of that written statement.

Now, for the mainstream media, sneering quotation marks around the words "partial-birth abortion" are second nature. As a journalist, when you see the words "partial-birth abortion," your finger, in a conditioned reflex originating in the cerebral cortex, moves straight for the quotation mark key on your keyboard. As the CNN story shows, this reflex is so ingrained that trained journalists have been observed distorting the meaning of quotations through the use of these sneering quotation marks.

Bush believes that partial-birth abortion is just that, and it is a substantive misrepresentation of his beliefs to place non-existent sneer quotes around the term -- particularly when quoting a written statement. This is because, as everyone knows, the use of sneer quotes indicates a belief that the word within the quotes is inaccurate.

It appears that "journalists" like this CNN reporter, or Maureen Dowd, or Alan Bill Arkin apparently need remedial training in the art of quoting people. As a public service, I will now present some simple rules for these accuracy-challenged folks. First: Only direct quotes go in quotation marks. Characterizations do not, if there is the slightest risk that the characterization could be misinterpreted as a quote. (The "Arkin rule.") Critical context must be supplied, and ellipses must not be used to distort the meaning of the quote. (The "Dowd rule.") And quotations must not add or delete quotation marks contained in the original quote -- especially for sneering purposes. (The "CNN rule.")

Posted
10/24/2003 07:25:00 AM
by Patrick
CREDIT WHERE CREDIT IS DUE: I criticize the Los Angeles Times a great deal, because there is a great deal of reason to do so. But I think it's appropriate that I also mention when this paper does something right. I think the Times has done a nice job recently in its reporting on admissions standards at the elite UC schools.

At UC Berkeley and UCLA, several thousand students with SAT scores exceeding 1400 were not admitted to some programs in recent years while hundreds of others with below-average scores gained entrance to the prestigious campuses.

This is an important story with obvious potential ramifications regarding affirmative action. It appears likely that Proposition 209 is being violated. It would have been the easiest thing in the world for the Times to ignore the story (or treat it as a non-story), and keep the P.C. elements in the newsroom happy.

Instead, the paper broke the news with this story, which revealed the findings of a confidential report criticizing UC Berkeley's admissions practices. The paper followed up yesterday with a similar story about UCLA. Throughout, the paper has given the story appropriately prominent play.

Let's give credit where credit is due. These stories have revived an important debate about the role of affirmative action in admissions processes. If the confidential findings had been buried or spiked, we wouldn't be having this discussion. I say kudos to the Times for reporting this story in the way it has.

UPDATE: Beware. It is written, somewhere, that praise of the Times by myself and Xrlq in the same week is one of the signs of the Apocalypse.

Critics of Arkin, including Hugh Hewitt, Patterico and Lileks, have been quick to pounce on the fact that Arkin put quotation marks around the word jihad, despite the fact that Boykin had (obviously) never used that word himself.

Now, the main reason I excerpt that quote is because I just love seeing in print the phrase "Hugh Hewitt, Patterico and Lileks."

Still, I feel I must unfortunately express rare disagreement with my respected blogging colleague Xrlq. It seems to me that many people unfamiliar with the whole Boykin controversy might have been misled by the quotation marks. Arkin devoted an entire column to criticizing the way that Boykin expressed himself. In this context, it seems to me (and Hugh Hewitt and Lileks!) that Arkin had a special responsibility to make sure that words within quotation marks, which refer to Boykin's alleged beliefs, reflect things that Boykin actually said.

Leather price — A caption accompanying the Wanted column in last Thursday's Home section incorrectly stated that a leather hide embossed with a crocodile pattern costs $440 a yard at Michael Levine fabric store in downtown Los Angeles. The price is for a hide that is about 55 square feet.

Posted
10/23/2003 06:51:00 AM
by Patrick
GOODBYE TO SCHIAVO CONTROVERSY: A reader asks me to shut up about Terri Schiavo already, and I think it's time to comply. What better way to say "goodbye" to this controversy than by directing your attention to a glib editorial about the case in today's Los Angeles Dog Trainer?

Although much of the editorial is serious in tone, I can tell that it was written by the idiot who does their light-hearted cutesy editorials (remember the one about the acronyms?). Bad choice. This one is "cleverly" titled To Be or Not To Be, and has lines like this: "By the way, there's a lingering family feud over $plitting a medical malpractice settlement." Get it? It's funny because of the dollar sign!

This editorial is worth discussing because it is an object lesson in how the news media does not give you the whole story. Like many of the news articles I have mentioned over the past few days, the editorial gives no hint of the peculiar facts (described in detail here) that set this controversy apart from many "right to die" cases.

Omitted from the editorial is any hint that maybe Mr. Schiavo shouldn't be the one making this decision. Omitted are the references to the nurse's affidavit saying that Mr. Schiavo asked, "When is that bitch going to die?" Omitted is the fact that Mr. Schiavo has been fighting rehabilitation for Ms. Schiavo, after collecting on a civil judgment obtained largely through the promise of pursuing such rehabilitation. Omitted is the fact that a world-renowned expert and Nobel Prize nominee has testified that Ms. Schiavo is not in a "persistent vegetative state," or that ten other physicians testified or gave statements to the same effect. Omitted is the fact that Terri once had a guardian ad litem who recommended against dehydrating her to death.

The Dog Trainer editors don't think you need to know this information. After all, it would interfere with the message they want to convey: that this is a simple "right to die" case. And the news media loves to accuse the public of being too simplistic.

Ultimately, the advocates of Ms. Schiavo's death would have you rely on the opinions of (some of) the doctors who examined Ms. Schiavo and have deemed that her vegetative state is "persistent." "Trust the doctors," we are told.

If the differing medical testimony I describe above doesn't make you think twice about putting blind faith in the opinions of doctors, perhaps this story will. It's about the recent wildcat strike by Los Angeles County Sheriff's Deputies. If you haven't heard about this, deputies are striking for a better contract. Many have come down with a case of the "blue flu" and called in sick, paralyzing the jails and courts. As reported here, an Orange County judge issued a temporary restraining order early this month, barring further sickouts. However, "hundreds of deputies called in sick in the days that followed." For example, at the Central Jail, two-thirds of the deputies called in sick one day.

But, you see, it's okay. They all really did just get sick all of a sudden, at the same time that they were having a labor dispute. We know this really happened, because doctors said so: "Outside court, union President Roy Burns said all of the deputies had doctors' notes that excused them from work for that day."

UPDATE: For those who put their trust in the doctors, please read Rus Cooper-Dowda's piece entitled When I Woke Up.

Also read recent articles by Wesley Smith, including from Oct. 20, 21, and 22. (Via Tonecluster.)

UPDATE x2: No sooner do I announce that I am cutting off posts on the subject than I hear from a different reader who wants me to continue to follow the story, especially in light of reports like this one indicating that a guardian hasn't been appointed, and that Mr. Schiavo may be playing games again. I appreciate this reader's concern, and I recommend that he and others consult WorldNetDaily, which seems to have the most up-to-date coverage.

UPDATE x3: Sorry, can't resist this. A Reason article concludes that Schiavo should be allowed to die, but also reports:

Minnesota neurologist Ronald Cranford told the Washington Post, "There has never been a documented case of someone recovering after having been in a persistent vegetative state for more than 3 months."

Pretty convincing. But wait! There's more!

However, the journal Brain Injury reported the case, of a 26-year-old woman who, after being diagnosed as suffering from a persistent vegetative state for six months, recovered consciousness and, though severely disabled, is largely cognitively intact. However, it is generally agreed that if a patient doesn't become responsive before six months, his or her prognosis is extremely poor.

Looks like "Minnesota neurologist Ronald Cranford" didn't get the memo! But trust the doctors! Also, note that a lack of responsiveness after six months means the prognosis is "extremely poor" -- not "hopeless."

The family of a disabled woman now under treatment by orders of Gov. Jeb Bush is barred from seeing her because her husband won't allow it, the family's attorney said Wednesday.

Xrlq explains that this is, like everything else, according to Terri's wishes:

Michael Schiavo, the selfless, loving husband who is only acting according to his wife's dying wishes, has suddenly recalled a second private conversation with Terri. As it turns out, not only did Terri confide that she wanted to die if she became incapacitated, she also told him that she hates her family and never wants to see them again.

If the family is truly being barred from visiting Ms. Schiavo, what is the reason -- other than pure spite? If Mr. Schiavo were trying to prove that he is a selfish person not interested in his wife's best interests, he couldn't do much better than this.

I believe that this bill is constitutional. However, I believe that it will be found to be unconstitutional. Let me explain what I mean.

Prompted by the bill's passage, I sat down last night and read the text of the bill for the first time. The thing that struck me about the law -- and this is something you will probably not fully appreciate until you read it for yourself -- is that Congress has essentially characterized the issue as a power struggle. It's smackdown time: Congress vs. the Supreme Court. And that is why I think that the bill will ultimately be found unconstitutional. Because the thing about power struggles between Congress and the Supreme Court is, the Supreme Court gets to decide them.

The bill argues that the Supreme Court decision that struck down Nebraska's partial birth abortion law, Stenberg v. Carhart, was based on flawed factual findings by the trial court. The trial court had specifically found that the partial-birth procedure can minimize health risks in certain circumstances, and indeed was actually safer than other procedures. In the bill, Congress basically says that these findings were wrong. Congress goes on to make findings of its own -- findings which are wholly contrary to those relied upon by the Supreme Court in Stenberg. Then, Congress states:

These findings reflect the very informed judgment of the Congress that a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care, and should, therefore, be banned.

Translation: in your face, Supreme Court!

Congress clearly has a point. The facts underlying the partial birth abortion debate are hotly contested by both sides. A significant portion of the citizenry has a strong interest in the subject. Yet the resolution of these facts has been largely decided, not through public debate, but by some trial judge in Nebraska -- after a trial that received virtually no public attention. For example, this trial received only a tiny fraction of the coverage that Kobe Bryant's preliminary hearing has received.

But this is not about rationality. I repeat: it is a power struggle. And so I suspect that the Supreme Court will not accept Congress's argument. The Court will reject Congress's position politely, of course -- on the surface. The Court will explain that the Stenberg decision was based only in part upon the trial court's findings. Also important to the decision was the significant disagreement in the medical community on the necessity for the procedure, as reflected in various amici briefs as well as testimony in the trial record. Etc., etc. But if you read between the lines, the ultimate message will be: right back at ya, Congress!

I think the new law is indeed constitutional, but not for the reasons that Congress says. Congress has to accept the Supreme Court's landmark abortion decisions (Roe and Casey) as correct statements of constitutional law; Congress can't just say that those cases were wrongly decided. But they were. There is no point in my trying to explain why. Justice Scalia did it better than I could, in his dissent in Casey. That dissent has many wonderful quotes and should be read in its entirety, but to me the essence of his argument is that

the best the Court can do to explain how it is that the word "liberty" must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice.

Scalia argues that such political choices should be left to, well, the political branches of government:

The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.

But, you may say, Roe and Casey are the law now, and they have to be applied. But the problem is that the applicable standard, announced in Casey, is completely unworkable because it is so vague. Under Casey, courts must determine whether the bill places an "undue burden" upon the supposed right to choose. This "test" is so nebulous that it is no test at all.

Again, Justice Scalia explains it best, so I will quote extensively from his dissent in Stenberg. Scalia explains that whether the statute creates an "undue burden" on abortion is a

conclusion that can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects (or believes society ought to respect) the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it.

Because there are no consistent standards to be applied, Scalia argues, the argument really isn't over application of clear, neutral principles. Rather, the argument is over whose value judgment prevails. For the dissenters,

[t]he most that we can honestly say is that we disagree with the majority on their policy-judgment-couched-as-law. And those who believe that a 5-to-4 vote on a policy matter by unelected lawyers should not overcome the judgment of 30 state legislatures have a problem, not with the application of Casey, but with its existence.Casey must be overruled.

Given how contentious this issue is, Scalia concludes, he cannot understand why people persist in the belief that the Supreme Court,

armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people -- where the Constitution, by its silence on the subject, left it -- and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.

I couldn't have said it better myself (which is why I let Justice Scalia say it). For all the reasons in Justice Scalia's dissents in Casey and Stenberg, I think this new bill is clearly constitutional. Unfortunately, Justice Scalia's rational and reasoned view has not carried the day so far, and it probably won't this time around either.

Ultimately, I am afraid that the new law will accomplish nothing other than to give us the chance to read another brilliant and persuasive dissent from Justice Scalia.

UPDATE: Xrlq has this critique of the ban on federalism grounds. I claim no expertise on the proper interpretation of the Commerce Clause, and I think it's debatable how the current Court would rule on the question. (You can look at the comments to Xrlq's post for competing viewpoints on the issue.) In any event, Xrlq has a plausible argument. Check it out.

I hope that readers who enjoy what they see here will take Hugh's advice and bookmark the site. I'd love to have you as regular readers. Also, I'd love any feedback -- which, until I move my blog to Movable Type, must be accomplished by e-mailing me at the link to the left.

Posted
10/21/2003 07:30:00 PM
by Patrick
THE DEEMING IS THE HARDEST PART: In my continuing quest to learn more about the husband's side in the Schiavo case, I present this TIME magazine article. Since it's TIME, you can be sure it is not taking a reflexively right-wing position. I doubt that any document short of Michael Schiavo's court filings will present a more sympathetic view of his arguments.

The article does not mention Michael Schiavo's "When is the bitch going to die?" comment. Nor does it mention the fact that he won a bunch of cash from a jury by arguing that he wanted to rehabilitate her, and then -- after the cash from the verdict had hit his bank account -- refused to pay for her rehabilitation. Only then did he mention that she had supposedly told him she did not want to stay alive through the use of extraordinary measures. These facts, which I find more compelling than any others, are nowhere in the article.

The story quotes an associate director of neuropsychology (who watched the videos of Ms. Schiavo) as saying: "There are many, many behaviors that look like conscious behavior that are reflexive or automatic." This guy says of the videos: "This is not compelling evidence. It's interesting and suggestive. But most of these responses could occur in a vegetative state."

This opinion appears to be different from what my friend -- a former head of neurology at a major metropolitan hospital -- told me based on his watching of the same videos (as described in this post immediately below). Still, as support for the Michael Schiavo position, the TIME expert's statement is underwhelming, to say the least. "Most" of these responses "could" occur in a vegetative state? This does not strike me as compelling enough evidence to justify killing someone when we don't know for sure that they want to die (because we can't trust the person who's telling us -- for details, read my posts here and here and the links in those posts).

My favorite part of the TIME piece comes after the main text of the article. There is a feature called called "Altered States" which is meant to describe varying degrees of consciousness. It contains this gem of an explanation: "A vegetative patient may recover; one deemed permanently vegetative will not."

Posted
10/21/2003 07:20:00 AM
by Patrick
A NEUROLOGIST ON THE SCHIAVO VIDEOS: Those people who defend the starvation of Terri Schindler-Schiavo often point to the opinions of so-called experts (like this guy), who claim to know that her apparent conscious reactions are "reflexive actions" that simply mimic ordinary human actions. I am highly suspicious of such explanations, because I wonder: how do they know?

As I said Saturday, I decided to pose the question to a friend of mine who is a brilliant neurologist. He was until recently the director of neurology at a major metropolitan hospital. He left that hospital to work at the hospital where his wife works, where he is now the sole full-time neurologist, and is working on setting up a center to treat multiple sclerosis.

I e-mailed my friend with a link to the videos of Terri. I asked him to answer the following question: "is she/could she be in a 'persistent vegetative state' -- and should it be okay to starve/dehydrate her to death?" I decided that, unless my friend objected, I would print his opinion regardless of which way he came down. Here is his e-mail to me (with emphasis added by me):

Hey Pat,

The responses she demonstrates indicate that her brain is functioning above the level of the foramen magnum and therefore she is not brain dead. Therefore, it is inhuman to stop feeding her or giving her hydration.

I don't know what exact medical condition led to her present neurological state but I saw that she was admitted to the hospital in 1990.

What usually happens in this case is that a person is admitted to a SNF -- Skilled Nursing Facility -- where nutrition (via PEG or by mouth) is given, other general medical issues are covered by the house doctor and whatever therapy is indicated gets done.

These cases go on all the time and if there is money involved, it gets messy.

I don't know what he means by that last sentence, and I am almost afraid to write him back and ask. Does he mean that people who are really not in a coma are being starved and dehydrated to death all the time, by people who want their money?? Is this case not unusual?? I'm not sure I want to know. . .

In any event, I respect my friend's opinion much more than the opinion of so-called experts whom I don't know personally. I am more convinced than ever that, as my friend said, what is happening here is inhuman. I pray that the Florida Senate acts on Terri's Bill this morning, and that something can be done to prevent what appears to me to be a deliberate, premeditated, state-sanctioned murder. That phrase -- often glibly misused by death penalty opponents protesting the execution of cold-blooded murderers -- seems to fit these facts distressingly well.

UPDATE: I have already reported this in updates to the post immediately below: the Florida Senate has passed the bill. Gov. Bush has signed it, and has ordered the feeding tube re-inserted. It will be when it is safe to do so. For further information, consult the links at the end of the next post.

UPDATE x2: Many readers are used to reading that most neurologists agree with the courts on this issue. But if you take a look at some of the stories making this claim, you'll see that it's not necessarily as cut-and-dried as it has sometimes been portrayed.

For example, see the post immediately above this one (here), showing that the key issue is whether Ms. Schiavo's vegetative state has been "deemed" permanent. Or read this post, which shows that a New York Times story on the topic fails to deliver what the headline promises.

Evidence about the case can be found all over this site, but this post has lengthy excerpts from affidavits by nurses and nurses' aides -- both about Terri's condition, and Mr. Schiavo's (alleged) incredible behavior throughout. And here is my reaction to a recent interview of Mr. Schiavo by Larry King.

I don't know all the answers, but I am looking at things with a critical eye, and I hope readers will as well. I have posted my reflections on the controversy here.